A court case in London which starts today could lead to pre-nuptial agreements becoming binding under English and Welsh law, according to the international law firm Withers.

The case of Roderick Macleod versus Maria Macleod, two US nationals, is being heard by the judicial committee of the Privy Council, which is the final court of appeal for UK overseas territories, UK Crown dependencies and certain Commonwealth member countries. The Macleod case was recently heard in the appeal court of the Isle of Man. Mr Macleod lost that case. 

Withers said this is the first family law case to have been dealt with by the Privy Council for many years and the first time that a court of this seniority will consider the impact of pre-nups on divorce.

“It will be interesting to see whether the Privy Council will be prepared to bring England more in line with many other jurisdictions across the globe which recognise and uphold pre-nups,” said James Copson, a partner in the family team at Withers.

In Scotland and Northern Ireland, different legal considerations apply to pre-nuptial agreements.

Withers said any ruling will be significant because its judicial committee has the same judges as the House of Lords – the UK parliament’s upper chamber. Divorce law in the Isle of Man is identical to England & Wales so the decision will be binding and followed in England and Wales.

Summarising the legal row so far, Withers said the Macleods had been married for 10 years. Mr Macleod had been wealthy prior to his marriage and his assets had doubled as a result of it. They signed a pre-nup agreement on their wedding day and moved to the Isle of Man a year later.

Withers said the couple’s pre-nup agreement would have been binding had they been divorced in Florida.  They agreed a variation of the terms of the agreement one year before the initial divorce application was filed, when the marriage was in trouble.

The judge in the Isle of Man High Court found that despite the wife’s claims to the contrary, there had been proper financial disclosure, independent legal advice, no undue pressure and the deed had been negotiated over a 14 month period with suspension of negotiation around the birth of the fifth child, Withers said.

However, Mr Macloed lost his case to the Isle of Man Court of Appeal. The court confirmed that agreements which had been reached with the benefit of independent legal advice, full disclosure and no undue pressure should be taken into account but not determine a party’s claims on divorce.  The decision has been appealed to the Privy Council.

Withers said this is the first family law case to have been dealt with by the Privy Council for many years and the first time that a court of this seniority will consider the impact of pre-nups on divorce.

Previously, the highest court to consider this issue was the Court of Appeal in Crossley v Crossley of 2008 in which the court held that the agreement in that case - the parties had been married for 14 months -  was in Lord Justice Thorpe’s words “a factor of magnetic importance”.